Citation Nr: 9918687
Decision Date: 07/08/99 Archive Date: 07/20/99
DOCKET NO. 96-36 029 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to service connection for paranoid schizophrenia.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Fetty, Associate Counsel
INTRODUCTION
The veteran had active service from January 1968 to September
1971.
This appeal arises from a June 1996 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Roanoke, Virginia, which determined that no new and material
evidence had been submitted to reopen a claim for service
connection for paranoid schizophrenia. The veteran has
appealed to the Board of Veterans' Appeals (Board) for
service connection for paranoid schizophrenia.
The Board issued a decision in this matter in January 1998
finding that no new and material evidence had been submitted
to reopen the claim. In an order dated November 24, 1998,
the U.S. Court of Veterans Appeals (now called the U.S. Court
of Appeals for Veterans Claims) (hereinafter referred to as
Court) granted the Secretary's motion to remand the appeal to
the Board for further consideration based on the Federal
Circuit Court of Appeals decision in Hodge v. West, 155 F.3d
1356 (Fed. Cir. 1998). The Board will therefore re-
adjudicate the appeal in the decision below.
FINDINGS OF FACT
1. In a July 1992 rating decision, the RO denied service
connection for paranoid schizophrenia, inter alia, on the
basis that the disorder was not shown in service or since
service; although notified of the decision and of his
appellate rights in a July 1992 letter, the veteran did not
appeal that determination.
2. The evidence presented subsequent to the July 1992 rating
decision establishes that the veteran currently suffers from
paranoid schizophrenia.
3. The veteran has not submitted competent medical evidence
that tends to relate paranoid schizophrenia to any disease or
injury during active service or that tends to indicate that
any alleged symptoms during active service or within any
presumptive period were manifestations of paranoid
schizophrenia.
4. Service connection is not in effect for any disorder.
CONCLUSIONS OF LAW
1. New and material evidence has been submitted to reopen
the veteran's claim for service connection; the requirements
to reopen the claim have been met. 38 U.S.C.A. § 5107, 5108
(West 1991); 38 C.F.R. § 3. 156(a) (1998).
2. The claim for service connection for paranoid
schizophrenia is not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
The veteran had active service from January 1968 to September
1971.
A November 1968 pre-enlistment examination report is negative
for claimed conditions. A February 1971 medical report
indicates that a diagnosis of Meniere's syndrome, line of
duty, was made. In February 1971 the veteran complained of
periods of vertigo with tinnitus and malaise. The impression
was labyrinthitis. He was treated at various other times
during active service for health complaints not associated
with this claim. His June 1971 separation examination report
is negative for any psychiatric conditions and he reported
that he was in good health at that time.
In May 1992, the veteran submitted a claim for benefits for
paranoid schizophrenia and hearing loss. He indicated that
he had been treated for these disorders during active
service.
By RO rating decision of July 1992, the veteran's claim was
denied on the basis that the claimed disorder was not shown
during or since active service. He was notified by letter of
this denial in July 1992 and he did not appeal that decision.
In March 1993, the RO received medical records showing that
the veteran underwent VA psychiatric hospitalization in 1980
and from October to December 1990, and most recently from
December 1992 to January 1993. The 1993 diagnosis on Axis I
was schizophrenia, chronic, paranoid type, in residual phase,
and episodic alcohol dependence. Earlier diagnoses were
similar. No opinion concerning the etiology of the veteran's
paranoid schizophrenia was offered.
In July 1994, the veteran underwent VA hospitalization. The
diagnosis on Axis I was chronic schizophrenia and moderate
nicotine dependence. The report notes that he had been
hospitalized from April to June 1994 for injuries received
when he was attacked and mugged in April 1994. He also
reported that he had been hearing voices and that he could
not hold a job.
In October 1994, the RO received VA outpatient treatment
records showing that the veteran was seen at various times
during 1994 for various health problems. These reports did
not indicate that the veteran's schizophrenia was related to
active service.
In March 1996, the veteran submitted a claim for service
connection for schizophrenia. He reported that during active
service he was a medic and was exposed to death and injury
which he felt had affected his thought processes. He also
reported that during his final months of active service, he
would isolate himself in his room, lay naked, and stare at
the ceiling.
The RO determined that no new and material evidence had been
submitted to reopen a claim for service connection for
paranoid schizophrenia in a rating decision of June 1996.
According to that rating decision, service connection is not
in effect for any disorder.
In January 1997, the veteran testified before an RO hearing
officer that during active service he was a medic and he did
witness death. During his last 3 to 4 months before
discharge, he was stationed in Germany and felt isolated from
everybody. He roomed in a bay room all by himself and rarely
went out. He felt that during that time he was paranoid and
confused. He became paranoid after a fellow battalion member
robbed him near the Post Exchange. He also felt paranoid
because he was not awarded the expert Field Medical Badge
even though he outscored the serviceman who was awarded the
badge. He lost about 25 pounds during active service. He
testified that he was not treated during active service for
paranoia and did not realize he had paranoia after active
service so he did not seek treatment within a year of
discharge; however, after active service he became aware that
he could not hold down a job.
The veteran further testified that he had 8 to 10 jobs during
the first two years after discharge. Problems arose at those
jobs when he would get angry with someone, or someone thought
he was too slow, or he just felt that he was being watched.
Approximately six years after discharge, he felt that he
needed treatment. He recalled that in approximately 1985, he
began to hear voices in his head and by 1990 he had
identified 13 or 14 of the voices which have continued to the
present. He reported that the voices that he heard did not
talk simultaneously anymore. He indicated that both of his
marriages ended in divorce. He testified that he currently
took Stelazine, Navane, and Ativan. He said that he had
worked at a VA medical center part time making seventy cents
per hour pushing wheelchair patients, but the job became too
overwhelming and he left. He also testified that he has
never applied for Social Security benefits.
In January 1998, the Board determined that no new and
material evidence had been submitted to reopen the claim for
service connection for paranoid schizophrenia. No additional
evidence has been added to the claims file since the January
1998 Board decision.
II. Legal Analysis
The Board notes that a prior decision of the RO is final with
the exception that a claimant may later reopen a claim if new
and material evidence is submitted. See 38 U.S.C.A. §§ 5108,
7104 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.156, 3.160(d),
20.302, 20.1103 (1998).
The question now presented is whether new and material
evidence to permit reopening the claim has been submitted
since the RO's adverse July 1992 decision. In considering
whether the evidence submitted is new and material, a two-
step analysis must be performed. First, the Board must
determine whether the evidence is, in fact, new and material.
Second, if, and only if, the Board determines that new and
material evidence has been submitted, the claim is "reopened"
and the case is reevaluated on the basis of all the evidence,
both new and old. See Manio v. Derwinski, 1 Vet. App. 140,
145 (1991).
New and material evidence means evidence
not previously submitted to agency
decisionmakers which bears directly and
substantially upon the specific matter
under consideration, which is neither
cumulative nor redundant, and which by
itself or in connection with evidence
previously assembled is so significant
that it must be considered in order to
fairly decide the merits of the claim.
38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3rd 1356 (Fed.
Cir. 1998).
The first step in the two-step analysis involves two
questions: (1) is the newly presented evidence "new," that
is, not previously submitted to agency decisionmakers, and
not cumulative or redundant; and (2) is the newly presented
evidence "material," that is, does it bear directly and
substantially upon the specific matter under consideration
and is it so significant that it must be considered in order
to fairly decide the merits of the claim?
In Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc),
and Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc),
the Court stated that there is now a three step test to apply
when a veteran seeks to reopen a final decision based on new
and material evidence. Under Elkins, VA must first determine
whether the veteran has presented new and material evidence
under 38 C.F.R. § 3.156(a) in order to have a finally denied
claim reopened under 38 U.S.C. § 5108. Second, if new and
material evidence has been presented, immediately upon
reopening the claim, VA must determine whether, based upon
all the evidence of record in support of the claim, presuming
its credibility, the claim as reopened is well grounded
pursuant to 38 U.S.C. § 5107(a). Third, if the claim is well
grounded, the decisionmakers may then proceed to evaluate the
merits of the claim but only after ensuring that the duty to
assist under 38 U.S.C. § 5107(b) has been fulfilled.
Since the last final decision on the issue in July 1992, the
veteran has submitted medical evidence of a diagnosis of
paranoid schizophrenia. Under the standard set forth by the
Court in Hodge, supra, this is new and material evidence
because a current diagnosis satisfies one of the necessary
elements for service connection and therefore does bear
directly and substantially upon the specific matter under
consideration. In other words, this evidence is so
significant that it must be considered along with all the
evidence, both old and new. The claim for service connection
for paranoid schizophrenia is therefore reopened. See
38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a)
(1998); Evans v. Brown, 9 Vet. App. 273 (1996); Manio, 1 Vet.
App. at 145.
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
service. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R.
§ 3.303 (1998).
Where paranoid schizophrenia becomes manifest to a degree of
10 percent within one year from date of termination of active
service, it shall be presumed to have been incurred in active
service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp.
1998); 38 C.F.R. §§ 3.307, 3.309 (1998).
Because the Board has reopened the case, the next issue to be
decided is whether the veteran has presented a well-grounded
claim for service connection for paranoid schizophrenia. See
38 U.S.C. § 5107(a); Elkins, Winters, supra.
The veteran must submit evidence that satisfies the following
criteria for each claim for service connection to be well
grounded. First, there must be competent evidence of a
current disability (a medical diagnosis). Second, there must
be evidence of incurrence or aggravation of a disease or
injury in service (medical evidence or, in some
circumstances, lay evidence). Last, there must be evidence
of a nexus or relationship between the in-service injury or
disease and the current disorder, as shown by medical
evidence. See Epps v. Gober, 126 F.3d 1464, 1468 (1997).
The nexus requirement may be satisfied by evidence that a
chronic disease subject to presumptive service connection
manifested itself to a compensable degree within the
prescribed period. See Traut v. Brown, 6 Vet. App. 495, 497
(1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993).
In the alternative, the chronicity provisions of 38 C.F.R.
§ 3.303(b) are applicable where the evidence, regardless of
its date, shows that a veteran had a chronic condition in
service, or during an applicable presumption period, and
still has such condition. Such evidence must be medical
unless it relates to a condition as to which, under the
Court's case law, lay observation is competent. If the
chronicity provision is not applicable, a claim may still be
well grounded on the basis of 38 C.F.R. § 3.303(b) if the
condition is observed during service or during any applicable
presumption period, if continuity is demonstrated thereafter,
and if competent evidence relates the present condition to
that symptomatology. See Savage v. Gober, 10 Vet. App. 488,
498 (1997).
The medical evidence submitted by the veteran reveals that a
diagnosis of paranoid schizophrenia has been given; however,
this disease was first diagnosed many years after separation
from active service and no competent evidence of a nexus
between the current disorder and active service has been
submitted. Neither has medical evidence been offered that
tends to show that symptoms displayed during active service
and alleged by the veteran to be manifestations of paranoid
schizophrenia were, in fact, manifestations of paranoid
schizophrenia. The Board must find therefore that the
veteran has not satisfied his initial burden of submitting a
well-grounded service connection claim because he has not
submitted evidence of a medical nexus between in-service
events and a current disability. Therefore, the claim must
be denied as not well grounded.
Although the veteran has testified that his current
disability is related to active service, he, as a layperson
without proper medical training and expertise, is not
competent to provide probative evidence on a medical issue
such as the diagnosis or etiology of a claimed medical
condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5
(1992). Even as a former medical corpsman, the veteran has
not been shown to be medically qualified to render a
competent psychiatric diagnosis or determine the etiology of
a psychiatric disability. As such, his allegations
concerning the etiology of his schizophrenia are not
probative. See Black v. Brown, 10 Vet. App. 279, 284 (1997).
Therefore, his testimony and allegations concerning the
etiology of his paranoid schizophrenia cannot serve to well
ground the claim. In this regard, the Board emphasizes that
a well-grounded claim must be supported by competent
evidence, not merely allegations. See Tirpak v. Derwinski,
2 Vet. App. 609, 611 (1992). Because no such competent
medical evidence has been submitted, the claim is not well
grounded and VA is under no duty to assist the veteran in
developing the facts pertinent to the claim. See Epps,
126 F.3d at 1468. Furthermore, the Board is aware of no
circumstances in this matter that would put VA on notice that
any additional relevant evidence may exist that, if obtained,
would well ground the claim for service connection. See
McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997).
The Board views its discussion as sufficient to inform the
veteran of the elements necessary to submit a well-grounded
service connection claim and the reasons why his claim is
inadequate. See Robinette v Brown, 8 Vet. App. 69, 77-78
(1995).
In the absence of a well-grounded claim, there is no duty to
assist the claimant in developing the facts pertinent to the
claim, and the claim must fail. See Slater v. Brown, 9 Vet.
App. 240, 243 (1996); Gregory v. Brown, 8 Vet. App. 563, 568
(1996) (en banc); Grivois v. Brown, 6 Vet. App. 136, 140
(1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Nor
is there a duty to remand this case to the RO for
adjudication of the well-groundedness issue as this would
appear to violate the Court's mandate in Winters. See
Winters, 12 Vet. App. at 206.
ORDER
New and material evidence having been submitted, the
application to reopen the claim for service connection for
paranoid schizophrenia is granted.
The claim for service connection for paranoid schizophrenia
is denied as not well grounded.
J. E. Day
Member, Board of Veterans' Appeals